The requirement for a cash security paid into court or for a surety to be promised are long established conditions that may be imposed by courts on bail granted to defendants in criminal proceedings. The potential risk involved for those who provide security has recently been highlighted in the case of Julian Assange, the Wikileaks founder, some of whose backers learned this week that they will lose £200,000 which was paid into court to help secure his release on bail.
So, what are the risks for those willing to offer financial support to help secure bail for defendants in criminal cases?
Security is money paid into court before the defendant is released on bail. The money must be deposited into court in cash or other cleared funds. Surety, in contrast, is money promised to the court by third parties and only at risk of being collected if the defendant does not attend court as required. Security can be raised by the defendant himself or by others; surety can only be offered by someone other than the defendant. In either case the intention is to create a financial motivation for the defendant and others to seek to ensure that the defendant returns to court when required to do so. The difference is that security will almost invariably be forfeit in the event of a defendant absconding; where surety has been offered it is less common for the court to exercise its power to require the amount promised to be paid. In the Assange case those offering surety have been given a further three weeks to gather evidence with which to seek to persuade the court that it should not collect on those promises in this case. The judge indicated that he would be interested to know what steps those offering surety had taken to seek to persuade him to surrender following his flight to the Ecuadorian Embassy.
In the UK, security is a relatively rarely used bail condition. Where bail is granted on such a condition it is generally at the suggestion of the defence who will seek to persuade the court why a particular sum in the case of a particular defendant should be sufficient to satisfy the court that the flight risk is reduced to an acceptable level. This can be contrasted with the USA where it is common place, where the court will routinely dictate a sum required for bail, and where an industry has been built around all aspects of the concept: the money is often loaned by a bondsman on a commercial basis - the bondsman then taking responsibility for ensuring the defendant attends court.
The Assange case serves to remind us of the real risk to those willing to put up their money in support of a defendant's bail in this country. Already £200,000 has been forfeit and it remains to be seen how sympathetic the court will be to those who offered security. In light of this case we may expect to see less generous offers of support in the future.